November 9, 2016
from the United States District Court for the Northern
District of Indiana, South Bend Division. No. 3:15-CV-198 -
Robert L. Miller, Jr., Judge.
Bauer and Kanne, Circuit Judges, and Feinerman, District
Long pled guilty to being a felon in possession of a firearm.
Thereafter, Long sought collateral relief, arguing that his
trial attorney provided ineffective assistance of counsel.
Unfortunately for Long, his plea agreement contained a
provision waiving his right to collaterally attack his
conviction and sentence. For that reason, the district court
summarily denied his claim.
appeal, Long argues that the district court erred in denying
his claim without an evidentiary hearing. Long correctly
notes that we will allow a petitioner to circumvent a
collateral-attack waiver if he can prove that his counsel was
ineffective in negotiating the plea agreement containing that
waiver. Nevertheless, because Long has failed to allege any
facts that, if proven true, would entitle him to relief, he
is not entitled to an evidentiary hearing. We affirm.
to Long's arrest report, on November 18, 2013, at about
4:20 a.m., a Mishawaka police officer on routine patrol saw
several cars maneuvering around a car parked in a
McDonald's drive-through lane. The officer notified
dispatch of his location and gave a description of the parked
car. He then got out of his squad car and approached the car
on foot. When he reached the car, he saw Long asleep in the
driver's seat. The officer noticed that the car was
actually in drive, but Long's foot was on the brake.
officer knocked on the car's window. When Long responded,
the officer told him to park the car and open the door so
they could talk. Long opened the door, and the officer
immediately smelled marijuana. As they were discussing the
marijuana odor, the officer saw a gun on the floorboard near
Long's feet. He then secured Long's hands and told
him not to move.
point, another officer arrived at the scene. The officers
discovered that Long had a prior felony conviction and thus
could not lawfully possess the gun. They arrested Long and
impounded his car. An inventory search of the car revealed
five gallon-sized bags of marijuana, three bags of ecstasy
pills, three cell phones, two digital scales, and
ninety-eight small plastic baggies.
government charged Long under 18 U.S.C. § 922(g)(1) for
being a felon in possession of a firearm. Assistant federal
public defender H. Jay Stevens was appointed to represent
Long. Long and Stevens allegedly discussed the possibility of
filing a motion to suppress the gun evidence. But Stevens
never filed that motion because he apparently
"didn't see any realistic hope in [Long] winning
[it]." (R. 35 at 2.) Two weeks after the filing deadline
passed, Long pled guilty to the possession charge.
plea agreement, Long expressly waived his right to appeal or
collaterally attack his conviction and sentence. He also
affirmed that he had told Stevens the facts and circumstances
of his case and that he believed Stevens was fully informed
of the relevant matters. During the change-of-plea hearing,
Long agreed that, if the case were to proceed to trial, the
government would be able to prove that a police officer found
Long asleep at the wheel in a McDonald's drive-through
lane, and after waking Long, the officer saw a gun on the
floorboard, which Long admitted he knew was there. The court
accepted Long's plea and set a date for sentencing.
Long changed his mind once he discovered that his presentence
report ("PSR") recommended a 4-level enhancement
under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm
in connection with another felony offense-that is, Long's
possession of marijuana. This enhancement increased
Long's guidelines range from 37-46 months to 57-71
months. At the sentencing hearing, Long claimed that Stevens
told him that no such enhancement would factor into his
sentence. Thus, Long wished to withdraw his plea. Stevens
acknowledged that the two disagreed about how to handle the
case. Accordingly, the court rescheduled the sentencing
hearing, allowed Stevens to withdraw as counsel, and
appointed Michael Rehak as new counsel.
after, in accordance with Long's wishes, Rehak moved to
withdraw Long's plea. Rehak argued that, had Long known
of the enhancement, Long would have moved to suppress the gun
evidence on the ground that the officers had no probable
cause to stop him. The government conceded that there was no
probable cause, but argued that there was no Fourth Amendment
violation because the officers were performing a caretaking
function by checking on Long, whom they had found asleep at
the wheel. At a hearing on the motion, Rehak said that he
viewed the case the same way that Stevens did and that Rehak
had explained to Long that withdrawing the guilty plea and